January 16, 2012 - Sanctionable Action

By Inna Vinagradov, Esq.

When working in the field of Workers' Compensation defense, it is important to understand the power of stipulations, know the time to make appropriate objections, and appreciate the intricacies of case law, not only to avoid excessive awards, but also additional sanctions imposed by the Workers' Compensation Appeals Board.

In Laboy v. State of California Department of Mental Health, (not citable) the Workers' Compensation Board of Appeals issued an Order denying Defendant's Petition for Reconsideration and issued Notice of Intent to Order to Pay Expenses and Sanctions.

The applicant, Doreen Laboy, worked as a nurse for defendant Metropolitan State Hospital, and sustained injuries to her spine (1998), upper extremities (2001), and psyche (1982-2001). She was examined by orthopedic surgeon Roger S. Sohn, who issued three AME reports between 2009 and 2010. She was also evaluated by Dr. Preston, who issued two AME reports in 2010.

In the 2011 Mandatory Settlement Conference (MSA), the parties stipulated that the applicant sustained injuries to her spine and psyche and to "1997 Rating Manual for PD" and that the applicant sustained injury to her upper extremities and psyche and to "1997 Rating Manual." No issues were raised or objections made.

At the trial on August 11, 2011, the WCJ found the applicant totally permanently disabled and awarded permanent total disability indemnity on a lifetime basis. The decision was based in part on the AME report of Dr. Sohn, who found that were it not for the injuries to the psyche, the back injuries would be apportionable under Benson (Benson v. Workers' Comp. Appeals Bd. (2009) 170 Cal.App.4th 1535, 74 Cal.Comp.Cases 113). However, the physical injury combined with the psychiatric injury made apportionment impossible without speculation. Therefore, it was concluded that there was one injury in this instance under Benson.

The defense filed a Petition for Reconsideration, where they objected to the AME report of Dr. Sohn because it did not constitute substantial evidence, as it failed to consider the AMA guidelines. Under Almaraz/Guzman III, "an evaluating physician must explain the reasons why a departure from the strict protocols of the AMA guidelines is necessary."

The court found that parties may not raise new issues on a Petition for Reconsideration that was not raised at the MSC, or, at a minimum, in the record at trial. (Cuevaz v. Workers' Compensation Appeals Board (2005) 70 Cal. Comp. Cases 479 (writ denied)). Findings and awards may be based on stipulations. (Lab. Code section 5702).

Specifically, the Almaraz/Guzman III case addressed the requirements of rebutting disability ratings under the AMA Guides portion of the 2005 Permanent Disability Rating Schedule. In the present case, the parties stipulated to using the 1997 Permanent Disability Rating Schedule.

In addition, the defense was attempting to dispute an AME report of Dr. Sohn. An AME was presumably chosen for his neutrality and expertise, and therefore his opinion should ordinarily be followed, unless there is good reason to find that opinion unpersuasive. (Power v. Workers' Comp. Appeals Bd. (1986) 179 Cal.App.3d 775 [51 Cal.Comp.Cases 114]).

As such, the Almaraz/Guzman III decision was found to be "not just irrelevant, but entirely baseless." The court denied defendant's Petition for Reconsideration. Further, the court issued notice of intent to order defendant to pay applicant’s attorney's fees and costs and impose sanctions on defendants and defense counsel, jointly and severally, in the amount of $1,000.

For more information or to send your thoughts, please email us at ivinogradov@acs-lawfirm.com.

Sept 27, 2011 - Time to Respond to AME Offer

By O. Fennern, Esq.

The WCAB has issued an en banc decision finding that service of the first written AME proposal by any method other than personal service extends the time period for seeking agreement on an AME. A QME panel request cannot be made until this time period expires. The WCAB also confirmed that the time period to agree to an AME is calculated using the “ordinary rule of computation of time, which excludes the first day and includes the last.”

In Messele v. Pitco Foods, Inc., Case No. ADJ 7232076 (Sept. 26, 2011), both the applicant and the defendant requested QME panels, and then disputed which was the appropriate panel. On April 20, 2010, the defendant objected by mail to the PTP’s opinion and proposed an AME. On May 1, 2010, the applicant submitted a QME panel request for a pain medicine specialist. On May 4, 2010, the defendant submitted a QME panel request for a hand specialist.

The WCJ found that Code of Civil Procedure § 1013(a) applies to extend by 5 calendar days the 10 days in which to seek agreement to an AME, and therefore found that the applicant’s request was premature. Applicant filed a Petition for Reconsideration, which the WCAB granted. In its September 26, 2011 decision, the WCAB noted that the applicant should have requested removal instead of reconsideration, because the WCJ did not issue a final order in the case. As such, the WCAB vacated its previous Order, deemed applicant’s petition as one for removal, and granted removal. The WCAB found that both QME panel requests were premature.

The WCAB noted that although Labor Code § 4062.2(b) does not specifically require service of the first written AME proposal, service was nevertheless the triggering event for the 10-day period as “[j]oint selection of an AME cannot occur if the process is not initiated by communication of the first written proposal.”

While Labor Code § 5708 provides that the WCAB is not bound by statutory rules of procedure, Labor Code § 5316 allows for service to may be made “in the manner provided by Chapter 5, Title 14 of Part 2 of the Code of Civil Procedure, unless otherwise directed by the appeals board.” The WCAB pointed out that WCAB Rule 10507 does “otherwise” direct because it differs in some respects from Code of Civil Procedure § 1013. WCAB Rule 10507 applies to extend the 10-day period of time for seeking agreement on an AME when the first AME offer is served by “any method other than personal service” by 5 calendar days if the physical address of the addressee is within California, 10 calendar days if the address is outside of California but within the United States, and 20 calendar days if the address is outside the United States.

Similarly to a recent WCAB Panel decision, Perez v. Accord Lodging North America/Motel 6, 2011 Cal. Wrk. Comp. P.D. LEXIS 135 (2011), the WCAB en banc further held that pursuant to the “ordinary” rule for computing time as established by Code of Civil Procedure § 12, Civil Code § 10, and Government Code § 6800, “the 10-day time period for agreeing on an AME excludes the first day, the date of the first written proposal, and includes the last, i.e., the 10th, day.” The parties may not request a QME panel until after the 10th day, so if the time period for agreeing on an AME is extended by five calendar days due to service to an address in California by a method other than personal service, “a request for a panel QME may be made only after the 15th day, i.e., on the 16th day or later.”

For more information or to send your thoughts, please email us at ofennern@acs-lawfirm.com.